' ASIF SAEED. KHAN KHOSA, J.---The necessary facts giving rise to the present appeal are that the appellant had imported some machinery free of customs duty and taxes for installation in the appellant's tannery/factory at Bhimber, Azad Kashmir tax free area vide Bills of Entry No,468, dated 7-10-1991, No,616, dated 22-10-1989 and No,253/89-90, dated 12-8-1989 which were all cleared from Sumbrial Dry Port through Index Nos. 53, 54 and 55 of IGM No,1501 of 1989 dated 27-7-1989 (all of Custom House, Karachi). Subsequently the appellant removed the said machinery surreptitiously from its tannery at Bhimber, Azad. Kashmir to Sialkot without payment of duties and taxes, etc. In terms of S.R.O. 500(1)/84, dated 14-6-1984, S.R.O. 490(1)/85, dated 23-5-1985 and S.R.O. 480(1)/88, dated 26-6-1988. The total appraised value of the machinery in terms of the Bills of Entry was Rs,6,110,914, involving customs duty, sales tax, import surcharge and advance income-tax. Upon receipt of information by the Directorate General, Intelligence and Investigation (Customs and Excise), Regional Office, Lahore from the Director-General regarding removal of the said machinery by the appellant from Bhimber, Azad Kashmir to Sialkot the Staff of Directorate General, Intelligence and Investigation conducted a raid at Sialkot on 7-11-1993 and seized and recovered the said machinery. A show-cause notice was subsequently issued to the appellant as to why it should not pay the amount of customs duty and other taxes leviable on the seized machinery and as to why the aforesaid machinery should not be confiscated and the appellant be penalized under the appropriate provisions of the Customs Act, 1969. The appellant, howker, repeatedly failed to appear before the Collector and also failed to submit any written reply to the said show-cause notice and finally an Order-in-Original was passed by the Collector of Customs, Central Excise and Sales Tax, Gujranwala on 8-7-1996 requiring the appellant to pay an amount of Rs,29,33,278.94 including customs duty, sales tax, surcharge and income tax. Through the same order a penalty of Rs,60,00,000 was imposed upon the appellant by the Collector under clauses (10-A) and (90) of section 156(1) of the Customs Act, 1969. That Order-in-Original was assailed by the appellant 'before the Customs, Central Excise and Sales Tax Appellate Tribunal through an appeal but the said appeal was dismissed by the learned Tribunal vide judgment, dated 28-1-1999. Hence, the present appeal before this Court.
2. In support of this appeal it has been argued by the learned counsel for the appellant that the Collector at Sialkot had no jurisdiction in the matter, the appellant had never been served with a show-cause notice; although S.R.O. 500(1)/84, dated 14-6-1984 was area-specific containing a condition regarding non-removal of the machinery from the relevant area for a period of ten years from the date of its installation yet the appellant's case was also covered by S.R.O. 983(1)/89, dated 27-9-1989, S.R.Os. 611(1)/89, dated 12-6-1989 and S.R.O. 500(1)/88, dated 26-6-1988 and the latter S.R.Os. Did not place any restriction over removal of the machinery and, thus, the appellant could take advantage of the latter S.R.O. Even if the appellant's case was hit by the provisions of the former S.R.O; and imposition of a penalty upon the appellant was without lawful authority and uncalled for. As against that the learned counsel for the respondents has maintained that the machinery in question had been illegally removed by the appellant from Bhimber, Azad Kashmir to Sialkot and the same had subsequently been seized and recovered at Sialkot and, therefore, the Collector at Sialkot had the requisite jurisdiction to proceed in the matter; the appellant had deliberately avoided appearing before the Collector for many years despite being aware of the pending proceedings and, thus, the appellant cannot maintain that it had been condemned unheard by the Collector, after consciously taking advantage of the former S.R.O. Mentioned above the appellant cannot be allowed to turn around at this late stage and try to take advantage of the latter S.R.Os. Mentioned above which were even otherwise not attracted to the case in hand; and the appellant had agreed to the condition regarding payment of penalty contained in S.R.O.
500(1)/84, dated 14-6-1984 and, therefore, it is not open to the appellant to maintain that a penalty could not be imposed upon it in case of breach of such conditions of the said S.R.O.
3. After hearing the learned counsel for the parties and going through the record we have entertained no doubt that the Collector at Sialkot had the requisite jurisdiction to proceed against the appellant 'as the machinery in question had undeniably been removed by the appellant to Sialkot and the same had in fact been seized and recovered at Sialkot. Thus, the first argument of the learned counsel for the appellant has utterly failed to impress us.
4. As regards the second argument of the learned counsel for the appellant we have noticed that paragraph No,6 of the Order-in-Original passed by the Collector as well as paragraph No,3 of the impugned judgment passed by the learned Tribunal contain the necessary details as to how efforts were repeatedly made to get the appellant served with show-cause notice and to associate him with the proceedings before the Collector but the appellant had avoided appearing before the Collector in that regard. It is available on the record that on 15-7-1995 a learned counsel representing the appellant had sought an adjournment of the proceedings before the Collector and it is, thus, quite clear that throughout those proceedings the appellant was aware of the same and it had deliberately avoided joining the same. To us the reason for the appellant's failure to join the said proceedings is quite readily discernible and understandable because on the basis of the seizure and recovery of the machinery in question a criminal case was also instituted in that regard wherein the appellant had been declared by the Court of competent jurisdiction to be an absconder. It was in that background that the appellant had made itself scarce. In these circumstances we cannot allow the appellant to take premium, of its own deliberate default in this regard.
5. Adverting to third submission of the learned counsel for the appellant it may suffice to observe that in the Bills of Entry submitted by it the appellant invoked S.R.O. 500(1)/84, dated 14-6-1984 and had claimed exemption from duties and taxes, etc. On the basis thereof. That S.R.O. Was area- specific besides being purpose-specific and the spirit of the said S.R.O. Was to achieve industrial development of some underdeveloped areas including Azad Kashmir and it was in that context that an exemption from duties and taxes, etc. Was allowed so as to encourage the business community to establish its industry in the specified areas for the ultimate benefit of the underprivileged people living in those areas. The appellant had imported the relevant machinery by taking advantage of the said S.R.O. And with a declared intention to install the said machinery in one such area and its subsequent removal of the said machinery from that area to Sailkot was, thus, incentive-incompatible. This exercise by the appellant has been found by us to be nothing but deceitful and fraudulent besides. Amounting to cheating. The present attempt by the learned counsel for the appellant to take advantage of some other S.R.Os., which are even otherwise not applicable to the case in hand, is an afterthought as no such ground was taken or urged by the appellant before the learned Tribunal.
6. As far as the last ground taken by the appellant before us is concerned it is pertinent to mention that in tennis of Condition No,(3) contained in S.R.O. 500(1)/84, dated 16-6-1984 the appellant had furnished a bond to the Collector of Customs to abide by the conditions laid down in the said S.R.O.
Failing which the appellant would pay the relevant duties and taxes and also that the appellant would make payment of any penalty that may be imposed upon it by the Collector in that regard.
Condition No,(5) contained in the said S.R.O. Had specifically provided that in case of removal of the machinery to an area other than that for which it had been imported within the period of ten years from the date of its installation the appellant could be visited with any penalty that may be imposed by the Collector in that regard. After agreeing to the said conditions and after taking advantage of the said S.R.O. By importing the relevant machinery without payment of duties and taxes, etc. The appellant cannot be allowed by us at this stage to turn around and claim that a penalty could not be imposed upon it on account of an established violation of the conditions of the said S.R.O. By the appellant. Thus, this argument of the learned counsel for the appellant also does not hold much water.
7. Apart from what has been discussed above it may also be observed that there is no serious or substantial question of law involved in the present appeal calling for interpretation by this Court.
8. For what has been discussed above we have failed to find any merit in this appeal and the same is hereby dismissed.